The Standing Issue: A Constitutional Twist in the Prop. 8 Case

Gay couple Tara Walsh, left, and Wen Minkoff embrace Thursday, Aug. 12, 2010, outside City Hall in San Francisco. Judge Vaughn Walker put gay marriages on hold for at least another six days in California, disappointing dozens of gay couples who lined up outside City Hall hoping to tie the knot Thursday. (AP Photo/Ben Margot)

Until Thursday, it had largely been a foregone conclusion that whoever came out on the losing side of Judge Vaughn Walker’s opinion in the Proposition 8 case would appeal to the U.S. Court of Appeals for the Ninth Circuit.

But in his opinion on Thursday, Judge Walker raised an issue that could provide a bit of a roadblock for the defendants on their way to an appeal.

It gets a little complicated pretty quickly, but the gist of it is that Judge Walker wondered aloud whether the defendants — those defending Prop. 8 — actually have standing to appeal.The nut of it, in less jargony terms: do the defendants have enough of a real live stake in the case to make an appeal?

What? you’re asking. How can a judge deny an appeal for a party to a lawsuit? Well, that’s just the thing. As Judge Walker reminds us in his opinion, the defendants in the case were not named by the plaintiffs in their complaint. That is, they weren’t actually sued. A different set of defendants, including the state of California, were named in the suit.

So, in order to enter the case, the defendants had to be granted special dispensation by Judge Walker in order to mount a defense of Prop. 8. Judge Walker, in this June 30 order, granted the defendants’ motion to intervene in the case.

But in his order issued on Thursday, Judge Walker wrote that the granting of a motion to intervene in a case does not automatically confer standing in a case. And standing is what you need in order to appeal a case.

Why wouldn’t an appeal be allowed? The answer starts with the Constitution. Because federal courts were created to exist within limits on their authority, the Constitution requires that, before any federal court can decide a case in a final way, there must be a live “case or controversy.” . . . [T]he federal courts have [long] refused to issue advisory opinions — that is, a legal declaration that does not really solve an actual courthouse battle between two real-life opposing sides.

. . .

The state of California, its governor, its attorney general, and other officials involved in the enforcement of state laws about marriage would definitely have “standing” to challenge Judge Walker’s decision in an appeal to the Ninth Circuit Court. But the officials from Gov. Arnold Schwarzenegger down to the marriage licensing officers have indicated that they have no interest in appealing the case.

Without participation of the state, the intervening defendants are left trying to prove that they, in fact, have standing.

Indeed, they spent a lengthy time in their brief to the Ninth Circuit requesting a stay (also filed Thursday) arguing the standing point. On page 21 of their brief, defendants argue that they “have standing to appeal because of their own particularized interest in defending an initiative they have successfully sponsored, an interest that is created and secured by California law.”

Will this carry the day? For now, it’s unclear, although what is clear is just how vital the standing issue has become. Writes Denniston:

Now, perhaps for the first time, it seems realistic to suggest that this particular high-stakes battle may never get much beyond California, especially in terms of its impact on the Constitution.

That prospect came into view Thursday as . . . Judge Walker suggested that the appeal of his . . . ruling may end on what everyone but lawyers would consider a mere legal technicality. It might end, in other words, because no one with a right to do so would opt to take the case beyond Judge Walker’s San Francisco courtroom.

About Law Blog

The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

Must Reads

Plaintiffs' lawyers dodged a bullet last year when the U.S. Supreme Court spared a quarter-century-old precedent that had served as the legal linchpin of the modern investor class-action case. Despite that win, a new report suggests that securities class actions have lost some of their firepower.

In a week in which images of Prophet Muhammad were connected to acts of terror and defiant expressions of freedom, a sculpture of the prophet of Islam inside the U.S. Supreme Court has drawn little notice.

Alan Dershowitz has vowed to slap a defamation suit against the two lawyers who claimed in a court document that Florida financier Jeffrey Epstein arranged sexual liaisons for him with an underage prostitute. Those lawyers have beaten him to the punch.

The salacious allegations against Prince Andrew and Alan Dershowitz that surfaced in a federal lawsuit involving convicted sex offender Jeffrey Epstein have generated international attention. Drawing less coverage is the lawsuit itself -- a case with the potential to expand the rights of crime victims during federal investigations.